COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69869 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES E. CORNELL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 18, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-243565 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: KAREN L. JOHNSON (#0025937) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES E. CORNELL, PRO SE (#P00069869A) Inmate #218-186 Trumbull Correctional Inst. P.O. Box 901 Leavittsburg, Ohio 44430-0901 - 2 - SPELLACY, C.J.: Defendant-appellant James E. Cornell ("appellant") appeals from his jury conviction for two counts of rape, in violation of R.C. 2907.02, and nine counts of gross sexual imposition, in violation of R.C. 2907.05. Appellant raises the following assignment of error upon appeal: THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT'S MOTION FOR NEW TRIAL AND THEREBY DEPRIVED APPELLANT OF DUE PROCESS OF LAW UNDER THE 14TH AMENDMENT. Finding appellant's appeal lacks merit, we affirm the decision of the trial court. I. On September 14, 1989, appellant was issued a thirteen-count indictment, to wit: three counts of rape, in violation of R.C. 2907.02, and ten counts of gross sexual imposition, in violation of R.C. 2907.05. One count of rape was amended to a lesser included offense of gross sexual imposition. On January 19, 1990, following a jury trial, appellant was convicted of two counts of rape and nine counts of gross sexual imposition. Appellant, however, was found not guilty of two counts of gross sexual imposition. Appellant was subsequently sentenced by the trial court on January 19, 1990, to life imprisonment as to each count of rape and four (4) years to ten (10) years on each count of gross sexual imposition. All sentences were to be served consecutively. On November 27, 1991, this court affirmed - 3 - appellant's conviction in State v. Cornell (November 27, 1991), Cuyahoga App. No. 59365, unreported. II. This case involves the sexual abuse by appellant of three minor children, namely Glenn Bragg, Kenneth Bragg, and Michael Bragg each of whom was under the age of thirteen at the time the alleged incidents took place. This appeal, however, only concerns incidents alleged to have taken place between appellant and Glenn Bragg, and appellant and Kenneth Bragg. The following facts were adduced at trial. Both Glenn and Kenneth Bragg testified at trial as to particular incidents when appellant improperly touched them and made each of them improperly touch him. At trial, Kenneth Bragg, then seventeen years old, testified that he had known appellant since he had been nine or ten years old. Kenneth Bragg stated that during the time he had known appellant, there had been numerous occasions when he would spend the night at appellant's apartment. On those occasions, Kenneth stated that appellant "would ask [him] to play with him while he would play with [Kenneth]", meaning "he would rub [Kenneth's] penis and [Kenneth] would rub his." (Tr. 157). Kenneth further stated that these activities initially happened while both Kenneth and appellant had their clothes on, but there came a time when both removed their clothing. (Tr. 158). Kenneth, however, stated that appellant's penis never touched his body. - 4 - Kenneth Bragg further testified that he never asked appellant why he wanted to do this, nor did appellant at any time ever force Kenneth to engage in the activities. (Tr. 177). However, appellant did, on occasion, buy Kenneth toys (Tr. 172) and would give him money (Tr. 192). Kenneth stated that the last incident which occurred with appellant happened in November 1988. (Tr. 180). Glenn Bragg also testified at trial. At trial Glenn testified that he was thirteen years old and that he had known appellant since he was seven years old. Glenn stated that he would go to appellant's apartment, and on occasion would stay over night. Glenn testified that when he went to appellant's apartment they would watch T.V., eat, "and then when we went to bed [appellant] told [him] to take off [his] pajamas, so -- and then [appellant] started feeling on me, and then he just kept doing it, and then -- ." (Tr. 64). Glenn testified that "doing it" meant that appellant would play with his penis, "he would just rub his hands up against it." (Tr. 65). Furthermore, Glenn stated that appellant's penis touched his body. Q: At any time did his penis touch your body? A: Yes. Q: Okay. Where did it touch your body? A: He just rubbed it up and down my legs. Q: On your where? A: On my legs. - 5 - Q: Where about on your legs? A: About up above my knees. (Tr. 66). Glenn Bragg stated that he never talked to appellant about the incidents which had occurred between the two of them, nor did he tell anyone about what was happening while it was going on. Glenn further testified that he continued this type of activity with appellant until 1988. In December 1988, Glenn stated that he told his mother what had been happening with appellant. During the summer of 1989, Glenn testified that he had had an argument with his mother, and following the argument he went over to appellant's apartment. Glenn testified that while he was at appellant's apartment, appellant tape recorded the conversation in which Glenn stated that Chuck, Glenn's mother's boyfriend, had made him say those things about appellant. However, Glenn stated at trial that appellant told him what to say while he was being recorded. According to Glenn, appellant would push the pause button, and instruct him on what to say, and then push the record button. Glenn testified that Joyce Pragger, appellant's sister, was present when the tape recording was made. He stated that Joyce also told him to make the statements. When asked by the court why he would make a statement admitting his prior accusations were false, Glenn replied, "I don't know. He just told me to say it, so I said it." (Tr. 109). - 6 - III. In his sole assignment of error, appellant contends that the trial court erred in overruling his motion for a new trial. In particular, in light of newly discovered evidence, i.e. Glenn and Kenneth Braggs' affidavit testimony recanting their testimony given at trial, appellant asserts that the trial court abused its discretion when it found that appellant was not unavoidably prevented from discovering the new evidence within 120 days as required by Crim. R. 33. The motion giving rise to this assignment of error is initially governed by the technical requirements contained in Crim. R. 33(B). The rule provides in pertinent part: Motions for a new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where the trial by jury had been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period. As a general rule, a motion for a new trial is granted where the defendant shows that he was unavoidably prevented from discovering the evidence which is the basis of the motion during the course of trial. State v. Gray (April 13, 1995), Cuyahoga App. No. 67574, unreported; State v. Pinkerman (1993), 88 Ohio App.3d 158. The evidence must have been the type that would have produced - 7 - a different result at trial. Furthermore, the Ohio Supreme Court has held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong possibility that it will change the result if a new trial is granted, (2) has been discovered since trial, (3) is such as could not in the exercise of due diligence have been discovered before trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach the former evidence. State v. Petro (1947), 148 Ohio St. 505. A motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of discretion connotes that the court's attitude was unreasonable, arbitrary and unconscionable. State v. Gray (April 13, 1995), Cuyahoga App. No. 67574, unreported; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In the case sub judice, appellant maintains the affidavits of the victims recanting their testimony warrant a new trial or at least an evidentiary hearing on the matter. We disagree. On the issue of whether recanted testimony warrants a new trial, it has been held: Where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at - 8 - the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court, whose action will not be set aside except for clear and manifest abuse. State v. Pirman (1994), 94 Ohio App.3d 203, citing State v. Curnutt (1948), 84 Ohio App. 101; Gray, supra. In the present case, both Glenn and Kenneth Bragg testified at trial that appellant improperly touched them, and that appellant made them touch him. Additionally, Glenn Bragg testified that, after telling his mother that appellant had sexual contact with him, he admitted to appellant, and appellant taped recorded the conversation, that his mother's boyfriend forced him to make the statements. However, at trial, Glenn Bragg stated that he lied, and that appellant told him what to say on the recorder. In light of Glenn Braggs conflicting testimony, the jury chose to find appellant guilty. Glenn and Kenneth Bragg have recanted their trial testimony. In particular, both Glenn and Kenneth signed affidavits stating that they were forced to testify falsely against appellant at trial. The affidavits, however, do not state with any particular- ity what Glenn and Kenneth Bragg falsely testified about. Nor do the affidavits offer any new evidence. Newly discovered evidence which purportedly recants testimony given at trial is "looked upon with the utmost suspicion." State v. Germany (September 30, 1993), Cuyahoga App. No. 63568, unreported, citing United States v. Lewis (C.A.6, 1964), 338 F.2d - 9 - 137, 139, quoting United States v. Trouche (C.A.2, 1954), 213 F.2d 401, 403. Thus, a motion for a new trial should only be granted where the court is reasonably well satisfied that the testimony given by a material witness is false. Id. In the case sub judice, this court concludes that appellant's newly discovered evidence does not disclose a strong probability that it will change the result if a new trial is granted. Germany, supra. Rather, appellant's newly discovered evidence merely impeaches or contradicts the former evidence. Id. Given the particular facts in this case, we find that it was neither arbitrary, capricious nor unconscionable for the judge to deny appellant's motion for a new trial as the victims' affidavits were unbelievable and presented no new evidence. Accordingly, appellant's assignment of error is without merit. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, J. and TERRENCE O'DONNELL, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .